Thompson v Ward

[2012] NSWSC 198

Supreme Court

New South Wales

Medium Neutral Citation:	Thompson v Ward; Estate of Ward [2012] NSWSC 198
Hearing dates:	27 February 2012
Decision date:	27 February 2012
Before:	White J
Decision:	Order that the defendant pay the plaintiff's costs of the proceedings.
Catchwords:	COSTS - consent orders for payment of legacy and costs - agreement that estate asset be sold - asset not sold and legacy not paid - legacy paid after application brought for revocation of grant and consequential orders to seek to give effect to agreement for compromise - costs follow the event - plaintiff substantially successful in obtaining the relief sought
Category:	Costs
Parties:	Raymond Ivor Thompson (Plaintiff) Jennifer Ward (Defendant)
Representation:	Counsel: C Vindin (Plaintiff) J Drummond (Defendant) Solicitors: Butlers Will Dispute Lawyers (Plaintiff) n/a (Defendant)
File Number(s):	2010/134503

Judgment

1. HIS HONOUR: The remaining issue in these proceedings concerns questions of costs.

1. In 2010 the plaintiff commenced proceedings seeking an order for further provision out of the estate of the late Noela Ward who died on 11 December 2009. Those proceedings were compromised by orders to which the parties agreed that were made on 10 December 2010 and by a deed dated 8 December 2010.

1. By consent it was ordered that in lieu of the provision made for the plaintiff under the will of the deceased the plaintiff was to receive the sum of $160,000. Other orders made by consent included that the costs of the plaintiffs as agreed or assessed be paid out of the estate of the defendant and that, to the extent the estate was insufficient for that purpose, the property in [xxxxxx xxxxxx] Erskineville was to be charged to secure payment of those costs. The declaration was made by consent that the [xxxxxx xxxxxx] Erskineville property was held by the deceased in trust for the defendant.

1. The defendant is the executor of the estate. By the deed of 8 December 2010 she agreed that an asset of the estate in Tanilba Bay be listed for sale, initially by private treaty, and if contracts had not been exchanged by 28 February 2011, that the Tanilba Bay property would be sold by public auction. She agreed that that auction was to be held no later than 31 March 2011.

1. Contracts for the sale of the property were not exchanged by 28 February 2011. It was not submitted for sale by public auction.

1. On 6 June 2011 the plaintiff filed a summons. He sought an order for the payment of the sum of $160,000 the subject of the orders made in the 2010 proceedings. He also sought orders for the revocation of the grant of probate in favour of the defendant and the appointment of an administrator to the estate. He sought orders to provide for the administrator to sell the Tanilba Bay property so as to enable payment of the legacy of $160,000 the subject of the previous orders.

1. The proceedings have been listed for directions on nine occasions before today. The defendant's position was that she was delayed in obtaining vacant possession of the property and that the property was not in a condition in which it could be submitted for sale, at least in a way which would enable a proper price to be obtained for it. A bees' nest had to be removed and there were repairs that had to be made to the property.

1. Proceedings were adjourned from time to time to enable the defendant to make arrangements for the property to be submitted to sale by auction. On 7 November 2011 the proceedings were adjourned for hearing to December 2011 and I noted the agreement of the parties that the adjournment was provided on the basis that the defendant had made arrangements for the property to be put to public auction. I also noted the defendant might proceed with a loan application.

1. In due course the defendant has raised the necessary finance to pay the legacy of $160,000 ordered on 10 December 2010 and to pay the costs which were also the subject of the 2010 proceedings. Interest on the legacy has not been paid, but I was informed that it would be paid forthwith and earlier I gave judgment for the outstanding interest.

1. It was in these circumstances that the plaintiff did not press his claim for the revocation of the grant of probate to the defendant. Nonetheless, he has been substantially successful in the proceedings in obtaining the relief that was sought. That was no more than the relief that had been agreed to in the deed of 8 December 2010. Although there has been no contested hearing of the plaintiff's claim, the defendant has in substance capitulated to the plaintiff's demand, as she was bound to do.

1. I see no reason why costs should not follow the event. I order that the defendant pay the plaintiff's costs of the proceedings.